Opinion
No. 08-3769-cr.
January 8, 2009.
Appeal from the United States District Court for the Eastern District of New York (Platt, J.).
ON CONSIDERATION WHEREOF, it is hereby ORDERED, ADJUDGED, and DECREED that the judgment of the district court be and hereby is AFFIRMED.
For Defendant-Appellant: DOUGLAS T. BURNS, Westbury, N.Y.
For Appellee: CHARLES P. KELLY, Assistant United States Attorney (Emily Berger, Assistant United States Attorney, on the brief), for Benton J. Campbell, United States Attorney, Eastern District of New York, Brooklyn, N.Y.
Present: HON. RALPH K. WINTER, HON. ROBERT A. KATZMANN, HON. REENA RAGGI, Circuit Judges.
Defendant-appellant Robert Kunkel appeals from a judgment of the district court, convicting him, after a jury trial, of conspiracy to commit wire fraud, in violation of 18 U.S.C. § 371, and conspiracy to commit money laundering, in violation of 18 U.S.C. § 1956(h), and sentencing him principally to 24 months' imprisonment. The jury acquitted Kunkel on a third count of the indictment, which charged Kunkel with a second conspiracy to commit wire fraud, in violation of 18 U.S.C. § 371. We assume the parties' familiarity with the facts and procedural history of the case.
On appeal, Kunkel argues that one or more errors in his trial, either singly or cumulatively, denied him a fair trial. Many of the purported errors of which Kunkel complains, however, are not supported by the record.
First, Kunkel has identified no errors in the district court's evidentiary rulings. The admission of McGonigle's testimony was not an abuse of discretion under Federal Rule of Evidence 401 or 403. The purportedly objectionable testimony was relevant under Rule 401 because it tended to show that Kunkel testified falsely in this case. See United States v. Garcia, 900 F.2d 571, 575 (2d Cir. 1990) (allowing evidence that tended to show defendant's testimony was misleading because such evidence was not offered to impeach defendant's general credibility but to contradict false statement of specific fact). And given that the testimony was largely an elaboration of other testimony admitted without objection, any risk of prejudice was small. "[M]aximizing [the evidence's] probative value and minimizing its prejudicial effect," we cannot say that the court abused its discretion by concluding that the risk of prejudice did not substantially outweigh the probative value of the evidence. United States v. McDermott, 245 F.3d 133, 140 (2d Cir. 2001); see Fed.R.Evid. 403. In addition, evidence that Kunkel was aware of and knew how to avoid currency reporting requirements was properly admitted as evidence of the conspiracies charged in counts one and two. See United States v. Concepcion, 983 F.2d 369, 392 (2d Cir. 1992) ("An act that is alleged to have been done in furtherance of the alleged conspiracy . . . is not an `other' act within the meaning of Rule 404(b); rather, it is part of the very act charged.").
Second, there is no support for Kunkel's contention that the court erred in its response to the jury's questions or in its attempt to control Kunkel's cross-examination. The court properly responded to the jury's questions: it gave the jury the requested exhibits and either answered the jury's questions or explained its inability to provide answers. Although Kunkel now argues that the court's response might have dissuaded the jury from making further inquiries, his attorney did not express such a concern after hearing the court's response in context. Indeed, Kunkel's attorney endorsed the court's response, calling it "a fair explanation." Neither were the court's comments during Kunkel's cross-examination improper, as they were a response to Kunkel's refusal to answer questions as directed on cross-examination. See United States v. Quattrone, 441 F.3d 153, 183 (2d Cir. 2006) ("[T]he judge necessarily has discretion to control the form and scope of cross-examination, [and] he must have discretion to order a witness to answer a proper question.").
Moreover, assuming arguendo that the purported errors were supported by the record, those errors, when evaluated either singly or cumulatively, would not have denied Kunkel a fair trial on the counts of conviction.
For example, to the extent the government's cross-examination impeached Kunkel with his post-arrest silence, such an error does not require a new trial if the government can establish "beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained." United States v. Santos, 449 F.3d 93, 99 (2d Cir. 2006); see Brecht v. Abrahamson, 507 U.S. 619, 629-30 (1993). In this case, it is beyond a reasonable doubt that any impermissible use of Kunkel's post-indictment conduct did not contribute to the verdict obtained because (1) the post-indictment conduct was related to the count of acquittal and was not emphasized to the jury, and (2) there was overwhelming evidence on the counts of conviction. Furthermore, there is no merit to Kunkel's suggestion that the jury may have believed, based on the cross-examination, that Kunkel had a burden of proof. The district court repeatedly instructed the jury that Kunkel is presumed innocent and that the burden of proof remains on the government, and we presume that the jury followed these instructions. Santos, 449 F.3d at 100.
As to the remaining purported errors, Kunkel's acquittal of a third conspiracy count undermines substantially any claim that these errors denied him a fair trial on the counts of conviction. See United States v. Stewart, 433 F.3d 273, 310 (2d Cir. 2006) ("It is clear from the partial verdict of acquittal that the jury carefully evaluated the evidence and rendered a discriminating verdict and not one that was based on uncharged acts or bad character." (internal quotation marks and brackets omitted)); United States v. Greer, 285 F.3d 158, 174 (2d Cir. 2002) ("[T]he jury's complex verdict resulting in convictions on some counts and acquittals on others demonstrated its fairness." (internal quotation marks omitted)).
We have considered Kunkel's remaining arguments and find them to be without merit. Accordingly, for the foregoing reasons, the judgment of the district court is hereby AFFIRMED.